Regina v. Michael Yanish Date:, 2014 BCPC 48

Citation: Regina v. Michael Yanish Date: 20140407 2014 BCPC 0048 File No: 90522-3KC Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL YANISH REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T.S. WOODS Counsel for the Crown: Richard Browning Counsel for the Defendant: James Dunne

Place of Hearing: Port Coquitlam, B.C. Date of Hearing: March 17, 2014 Date of Judgment: April 7, 2014 INTRODUCTION [1] It is alleged in count 1 of Port Coquitlam Information No. 90522-3KC that on July 13, 2013, the accused Michael Yanish (“Mr.Yanish”) assaulted Shaun Ross Skerratt (“Mr. Skerratt”). Count 2 on the Information charges Mr. Yanish with possession of a knife fora purpose dangerous to the public peace, but that charge was stayed at the commencement of trial. The Crown thus proceeds against Mr.Yanish on the assault charge only. [2] That Mr. Yanish punched Mr.

Skerratt in the face and head three or four times on the offence date, leaving him bleeding, badlybruised and swollen and with a lacerated nose, multiple fractures to his facial bones and a broken jaw is not in dispute. Indeed, it isconceded by Mr. Yanish via his counsel that his actions constituted the intentional application of force to a complainant without thecomplainant’s consent that is contemplated by the definition of assault found in s. 265(1)(

a) of the Criminal Code, R.S.C. 1985, c. C-46(the “Code”). Rather, what is in controversy is whether that assaultive behaviour was unlawful. [3] Mr. Yanish elected to call defence evidence by testifying on his own behalf. He was the only defence witness. In argument heinvokes the recently amended provisions of s. 34 of the Code. That

section provides as follows: “34.

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being madeagainst them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from thatuse or threat of force; and (

c) the act committed is reasonable in the circumstances.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances ofthe person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use offorce; (

c) the person's role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force andthe nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person's response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful.” [4] Citing mainly his own testimony in support, Mr. Yanish submits that, in striking Mr. Skerratt, he acted to prevent himself frombeing struck and harmed. If, as Mr. Yanish contends, his impugned actions were reasonable and performed in self-defence, then theblows that he administered to Mr. Skerratt will not have been unlawful and will therefore not attract criminal liability for assault. AsDhillon, P.C.J. stated R. v. Urquhart, 2013 BCPC 184 , [2013] B.C.J. No. 1569 (Prov.

Ct.): “… An assault by an accused will not be unlawful if he acted in self defence or there is a reasonable doubt that he did. The onus is onthe Crown to show beyond a reasonable doubt that self defence does not apply.” (at para. 53) THE UNCONTROVERSIAL FACTS [5] Some of the broadly relevant facts surrounding the events of July 13, 2013, are uncontroversial, viz: (

a) The incident in the course of which Mr. Yanish punched Mr. Skerratt (the “Incident”) occurred between 7:30 a.m. and 8:00a.m. on July 13, 2013, in apartment number 405, 2627 Shaughnessy Street in Port Coquitlam, B.C. (the “Apartment”); (

b) Prior to the Incident Mr. Yanish and Mr. Skerratt were acquaintances who came to know one another through mutual friends. They got along well with one another and had never been in conflict;

(

c) Mr. Yanish is 6’ 2” in height and at the time of the incident weighed between 220 and 230 lbs. Mr. Skerratt is between 5’ 10”” and 5’ 11” in height and at the time of the incident he weighed approximately 150 lbs. (

d) Until approximately three weeks before the Incident, Crystal Leadbetter (“Ms. Leadbetter”)—Mr. Yanish’s ex-girlfriend— cohabited with Mr. Yanish at the Apartment; (

e) The furniture in the Apartment belonged to Mr. Yanish; (

f) When the long-term, but frequently troubled, quasi-spousal relationship between Mr. Yanish and Ms. Leadbetter came to an end, they worked out a temporary arrangement to enable Ms. Leadbetter to find new accommodation. Under that arrangement, both occupied the Apartment for a day or two at a time, but separately. When one was there the other resided elsewhere; (

g) The night of July 12, 2013—that is, the night that preceded the morning of the Incident—happened to be one where Ms. Leadbetter had use of the Apartment and Mr. Yanish was staying elsewhere; (

h) For the first part of that evening, Ms. Leadbetter spent time drinking and socialising with a group of friends at the home of a couple in Port Moody. Mr. Skerratt was part of that group. During that time Ms. Leadbetter became aware of the fact that Mr. Yanish had been dating another woman and that he and that woman had spent time together in the company of some of Ms. Leadbetter’s friends. Upon learning this she sent a text to Mr. Yanish expressing her disapproval in the following terms: “Wtf u take some ugly brood out with my girls. Tell her she’s dead and I’m gonna find her. She should. B scared” (all sic , Exhibit 2, p. 1) (

i) Partway through the evening, Ms. Leadbetter left the house in Port Moody and returned to the Apartment, accompanied by Mr. Skerratt and possibly others with whom she had been drinking and socialising in Port Moody; (

j) Ms. Leadbetter and her visitor(

s) continued drinking and socialising at the Apartment into the morning of July 13 th . Eventually, both Ms. Leadbetter and Mr. Skerratt went to sleep. Both had consumed substantial quantities of alcohol. Mr. Skerratt in particular had consumed at least 10 cans or bottles of beer; (

k) Between 7:21 and 7:26 a.m. on July 13th, Ms. Leadbetter sent three further text messages to Mr. Yanish in the following terms: “Ur dumb mut bitch. Is still gonna get her teeth kicked in. Hahah” “Ur bed got a little broke this morning. Oops” “That’s why I called. Sorry. We r sleeping now. Ttyl” (all sic , Exhibit 2, pp. 1-2) (

l) Mr. Yanish understood the latter two text messages to mean that Ms. Leadbetter had been engaging in some boisterous sexual activity with another person in Mr. Yanish’s bed and that, as a result, they had damaged it. (Ms. Leadbetter did not squarely deny that she sent those messages to “bait” Mr. Yanish; rather, she sidestepped the cross-examiner’s question in this regard by resorting to that all- purpose, world-weary, bored-sounding non-answer—“whatever”—that is so favoured by her generation); (

m) A few minutes after the last of these text messages was sent and received, Mr. Yanish arrived at the Apartment and demanded to know from Ms. Leadbetter who else was there; (

n) Mr. Yanish searched the Apartment and eventually found Mr. Skerratt inside it. The Incident occurred very soon afterward; (

o) Ms. Leadbetter made a 911 call to report the Incident and a few minutes before 8:00 a.m. Constables John Chung (“Cst. Chung”) and Tarjinder Dheri (“Cst. Dheri”) of the Coquitlam Detachment of the RCMP arrived at the Apartment to investigate. They found only Ms. Leadbetter and Mr. Skerratt there; (

p) There were copious amounts of blood in the Apartment’s second bedroom, staining, in varying degrees, a pillow, bedsheet, blanket, wall, baseboard heater, carpet and blinds. There was some blood in the bathroom as well. Both Ms. Leadbetter and Mr. Skerratt were highly agitated and obviously intoxicated. Mr. Skerratt’s face, head and neck displayed substantial bleeding, bruising and swelling. He was dazed and visibly in pain; (

q) Cst. Chung interviewed Ms. Leadbetter and obtained the name and a description of the individual (Michael Yanish) who she said had attended there and assaulted Mr. Skerratt shortly before police had arrived. Cst. Chung broadcast that information over the police radio so that other officers might investigate; (

r) Cst. Chung took photographs of the overall condition of the Apartment and of Mr. Skerratt’s injuries (Exhibit 1); (

s) Cst. Dheri spoke briefly with Mr. Skerratt and followed the ambulance that transported him to Eagle Ridge Hospital where, shortly before 9:00 a.m., he took Mr. Skerratt’s statement; (

t) Cst. Darius Naderpour (“Cst. Naderpour”), also of the Coquitlam Detachment of the RCMP, responded to the radio call to investigate Ms. Leadbetter’s report that Mr. Yanish had assaulted Mr. Skerratt; (

u) Using historical address information accessible online regarding the owner of a vehicle that he had reason to believe belonged to Mr. Yanish, Cst. Naderpour—accompanied by two other officers—attended at an apartment building located at 2368 Marpole Avenue

in Port Coquitlam; (

v) Upon entering the lobby area of that building but before attempting to locate Mr. Yanish’s unit within it, Cst. Naderpour encountered two adult males, one of whom matched the description of Mr. Yanish that had been broadcast by Cst. Chung over the police radio; (

w) The individual who matched the description immediately came forward, unbidden, and extended his arms outward toward Cst. Naderpour. Cst. Naderpour queried, “Michael?”, to which Mr. Yanish replied “Place me in handcuffs”; (

x) No blood was visible on Mr. Yanish’s clothing or hands; (

y) Cst. Naderpour satisfied himself as to Mr. Yanish’s identity. He then gave him the appropriate Charter and police warnings from memory, arrested him for assault and placed him in handcuffs. After putting him in the rear seat of his police cruiser, Cst. Naderpour provided Mr. Yanish with Charter and police warnings a second time, this time relying upon printed cards to do so; (

z) While in Cst. Naderpour’s police cruiser and being transported by him to cells at the Coquitlam Detachment, Mr. Yanish made a number of spontaneous, voluntary statements to the constable. Cst. Naderpour did not record any of them verbatim . A paraphrase of one was written more-or-less contemporaneously by the officer into his notebook; he recorded paraphrases of the remainder in the Report to Crown Counsel narrative that he prepared, at most, a few hours later. The statements were to the effect that: • Mr.

Yanish had gone back to his home that day • He had caught his girlfriend in bed with a naked man (referring once to her as his ex-girlfriend) • There should be a criminal charge for cheating • He did not understand why she would do that to him • He thought that the police were simply doing their job (aa) Absent from the spontaneous, voluntary statements Mr. Yanish made to Cst. Naderpour after he was arrested for assault was any statement about, or reference to, his having experienced fear that he himself would be harmed by the complainant or that his actions at the Apartment had been taken in self-defence.

THE CONTENTIOUS SELF-DEFENCE EVIDENCE OF THE ACCUSED Preliminary Points [ 6 ] As can be seen from the outline of uncontroversial facts set out above, the Incident occurred within the broader context of the recent dissolution of the quasi-spousal relationship between Mr. Yanish and Ms. Leadbetter, coupled with an overnight stay by Mr. Skerratt at the Apartment at a time when Ms. Leadbetter (but not Mr. Yanish) was residing there. Emotions were already running high as between Mr. Yanish and Ms. Leadbetter and Ms. Leadbetter inflamed the situation by baiting Mr.

Yanish with provocative text messages that implied that, in light of what she considered unacceptable consorting on his part with another woman, she too had embarked on an adventure of her own involving boisterous sex with another person in the Apartment and in Mr. Yanish’s bed. Mr. Skerratt stayed overnight at the Apartment that night and, after receiving the aforementioned provocative text messages, Mr. Yanish quickly made his way to the Apartment, found Mr. Skerratt there and punched him three or four times, injuring him badly. [ 7 ] Ms.

Leadbetter testified that the person with whom she had had a sexual encounter on the night of the alleged offence was a person who had also been at the Apartment and, curiously, shared the same first name as Mr. Skerratt—that is, “Shaun” or “Sean”—but whose surname and departure she couldn’t recall. Mr. Skerratt’s testimony contained no references to any sexual activity on his part with Ms. Leadbetter—indeed, his testimony was that his girlfriend had accompanied him to the Apartment but then mysteriously disappeared.

Being in both a deep sleep and a drunken state when he was attacked in the course of the Incident, he could give virtually no evidence about being punched repeatedly by Mr. Yanish beyond recalling the sound of Mr. Yanish’s angry voice. [ 8 ] Whether (

a) Ms. Leadbetter’s taunting e-mails to Mr. Yanish contained a thread of truth about her illicit sexual activities in the Apartment on the offence date, or (

b) Mr. Skerratt was a participant in those activities, will never be known. Ms. Leadbetter’s testimony as a Crown witness was, at times, confusing to the point of being incoherent. And, because Mr. Skerratt’s evidence was that his recollection of material facts concerning the Incident was almost entirely occluded by an insensate condition brought on by a combination of alcohol and fatigue, he gave no testimony that could bring matters into better focus. What is clear, however, is that Ms. Leadbetter’s provocative e-mails hinting at some spirited, post-breakup infidelity on her part brought Mr.

Yanish swiftly to the Apartment and, very soon after arriving there, he administered (by his own admission) a significant beating to Mr. Skerratt. Did Mr. Yanish Punch Mr. Skerratt in Order to Protect Himself from Harm? [ 9 ] Whether Mr. Yanish acted in self-defence is the main issue in this prosecution. [ 10 ] Mr. Yanish’s testimony during his evidence-in-chief was that the texts he received from Ms. Leadbetter excited concerns on his part about people unknown to him being in the Apartment (something for which he hadn’t given his permission).

The texts also raised concerns, he said in chief, about the possibility that his furniture might be damaged. This, he testified, led him to go to the Apartment, even though under his alternating arrangement with Ms. Leadbetter it was a time when she was to be staying there (and not him). He claimed in his testimony that his purpose in attending was to ensure that strangers were not present in the Apartment without his permission and that his furniture was not in jeopardy. [ 11 ] Upon arriving at the Apartment (Mr. Yanish’s direct testimony continued), he entered it using his own keys and immediately

noted men’s shoes on the floor that he did not recognise. He then went to the kitchen, got a steak knife which he concealed in one hand with the blade pointing up into his sleeve, and searched through the apartment for further signs of people other than Ms. Leadbetter being present. When his search brought him to the master bedroom he found Ms. Leadbetter on the telephone to police and he demanded that she tell him who else was in the house. He did so using a loud voice and vulgar profanities. Mr.

Yanish’s narrative went on with him returning the knife to the kitchen, continuing his search and, eventually, discovering Mr. Skerratt asleep in the bed in the second bedroom. [ 12 ] Mr. Yanish testified that he entered the second bedroom, nudged Mr. Skerratt roughly with the toe of his foot in the chest and leg areas a few times and told him in a loud and commanding voice, repeatedly, that no visitors were supposed to be in the Apartment. The commands he issued were “get the fuck out of my house” and other variations on that theme. [ 13 ] The nudging and yelling, Mr. Yanish testified, startled and awakened Mr.

Skerratt and caused him to sit up quickly with both hands closed and held at shoulder level. Mr. Yanish sometimes used the word “lunge” to describe the way that Mr. Skerratt’s torso moved upward and toward him when he awoke and sat upright. Mr. Yanish’s testimony was that this motion caused him to fear that Mr. Skerratt would harm him—in his own words: “I thought that maybe he might strike me”. Thus, he testified, he punched Mr. Skerratt three or four times in the head area in order to prevent that from happening. [ 14 ] In order for Mr.

Yanish successfully to call in aid the defence of self defence, I must find his testimony recounting the above- described sequence of events in the second bedroom, culminating in the Incident, to be credible. To paraphrase s. 34 , I must find on the basis of credible evidence that: (

a) Mr. Yanish had a reasonable belief that Mr. Skerratt had, by his action upon awakening, made a threat of force against him; (

b) Mr. Yanish punched Mr. Skerratt for the purpose of defending himself from that threat of force; and (

c) in so doing, Mr. Yanish acted reasonably in all the circumstances. [ 15 ] I will say straightaway that I have no hesitation in rejecting Mr. Yanish’s evidence in this connection as having been contrived and concocted in order to furnish him with a defence—that is, the ability to argue that he struck Mr. Skerratt in self-defence. [ 16 ] A central tenet of Mr. Yanish’s story was that his reason for attending at the Apartment was to ensure that no unauthorised guests were present there and that his furniture not be placed, or remain, in jeopardy.

Indeed, in his evidence-in-chief, he referred to no other reason for attending there. However, under cross-examination Mr. Yanish admitted that the last two text messages he received from Ms. Leadbetter caused him concern that she was cheating on him. [ 17 ] The possibility that Ms. Leadbetter may have been committing infidelity with another person was plainly uppermost in Mr. Yanish’s mind. That is borne out by his actions throughout.

As he said himself in both his direct evidence and on cross-examination, upon arrival at the Apartment his focus was trained upon the possible presence of persons there other than Ms. Leadbetter. His first reported observation was that there were men’s shoes visible that were not his own. He immediately launched into a search for another person, and not for evidence of damaged furniture.

Indeed, in describing his actions upon entering the Apartment, he made no mention of having ever searched for, or of having been vigilant for, or of having seen signs of, damage to any of his property. [ 18 ] As I have mentioned, soon after entering the Apartment, Mr. Yanish insisted that Ms. Leadbetter tell him where in the Apartment the other person was. She told him that there was nobody in the Apartment but herself. By his own account, Mr.

Yanish did not demand then or at any other time to see his bed in the master bedroom in order to assess its condition. [ 19 ] If damage to furniture had truly been the concern Mr. Yanish now says it was, surely his actions upon arrival at the Apartment would reflect that. They do not. I find that Mr. Yanish was feeling aggrieved that Ms. Leadbetter may have had a sexual encounter with another person (as she had intimated she had done in the text messages that brought Mr. Yanish to the Apartment within minutes of their transmission).

His determined efforts to find another person in the Apartment are consistent with that conclusion. [ 20 ] Mr. Yanish’s actions aimed at verifying claims of infidelity on Ms. Leadbetter’s part and then dealing with it also resonate with his voluntary and spontaneous statements to Cst. Naderpour after he was arrested and placed in the officer’s police cruiser. Those voluntary and spontaneous statements went into the record unchallenged by Mr. Yanish and they contained no mention whatsoever of broken rules about unauthorised visitors, or of Mr. Yanish having had concerns about damage to his furniture.

Rather, they referred exclusively to Ms. Leadbetter’s infidelity and how, in his mind, those who commit infidelity should be subject to criminal charges. Mr. Yanish even went so far as to tell Cst. Naderpour that he had caught Ms. Leadbetter in bed with a naked man during his return visit to the Apartment—a statement which, like the others he made to police, he sought to dismiss at trial as being meaningless rantings which were unconnected to actual events at the Apartment and which could (he said) be attributed to his agitated emotional state. I found this attempt on Mr.

Yanish’s part to explain away his damaging admissions against interest unconvincing. [ 21 ] Mr. Yanish’s admitted state of upset and anger were plainly rooted in what he believed to be Ms. Leadbetter’s unfaithfulness, and not in concerns about broken house rules or whether his furniture may have come to harm. [ 22 ] Mr. Yanish agreed with Crown counsel during cross-examination that he took Ms. Leadbetter’s text message in which she told him “Ur bed got a little broke this morning. Oops” to mean that, in the course of boisterous sex, she and another person had broken his bed.

He sought, also unconvincingly, to say that that was not his main concern. But his actions overall belie that. [ 23 ] The beating that Mr. Yanish administered to Mr. Skerratt is also consistent with him having, at the time, borne animus toward Mr. Skerratt as a person he suspected had consorted with Ms. Leadbetter sexually at a time when he (Mr. Yanish) still had feelings for her and felt betrayed. [ 24 ] Mr. Yanish would have the court accept that his only concern with Mr. Skerratt was that he was present in the Apartment without his permission. Yet his own admitted actions of roughly nudging Mr.

Skerratt with his foot in the chest and leg area (on one

occasion he used the word “kick”) and demanding in a loud voice that he immediately “get the fuck out of [his Apartment]” are notcommensurate with such a small basis for concern. Recall that Mr. Yanish testified repeatedly that he had no history of conflict orenmity with Mr. Skerratt whatsoever; indeed, he said under oath that he “like[d] him” and considered him to be a “good guy”. Recall aswell that Mr. Yanish was not confronted, within the Apartment, with anything to suggest that Mr. Skerratt had damaged any of Mr.Yanish’s furniture. [25] Clearly, upon finding him in the Apartment, Mr.

Yanish was not reacting to Mr. Skerratt as someone who had spent time therewithout someone first getting his (Mr. Yanish’

s) approval for his presence. If that had been the case, he could have simply asked Mr.Skerratt to leave. [26] But that was not the case. [27] The magnitude and nature of his reaction bears out that Mr. Yanish was reacting to Mr. Skerratt in an extreme way—that is, inthe way a cuckold would react upon catching his unfaithful spouse’s illicit lover in his (the cuckold’

s) own home. [28] Neither is Mr. Yanish’s testimony about his perceived fear of being harmed by Mr. Skerratt in the least credible. After beingarrested by police he was remarkably loquacious and delivered himself of several voluntary statements to Cst. Naderpour which giveinsight into what had motivated his actions at the Apartment shortly before. Infidelity was the common thread that runs through thosestatements; conspicuous in its absence from them was any mention of a fear Mr. Yanish had of suffering harm at Mr. Skerratt’s hands. [29] The evidence establishes that Mr.

Yanish is 6’ 2” in height and that at the time the Incident occurred he weighed between 220 to230 lbs. By contrast, Mr. Yanish conceded that Mr. Skerratt is between 5’ 10” and 5’ 11” in height. At the time of the Incident (when hewas photographed), as at the time of trial, Mr. Skerratt weighed about 150 lbs. [30] The sheer difference in their relative sizes calls into doubt Mr. Yanish’s professed fear that Mr. Skerratt would harm him. [31] That professed fear appears even less reasonable when it is recalled that when Mr. Yanish finally found Mr. Skerratt in theApartment, the latter was dead asleep. Mr.

Yanish testified that he had to roughly nudge (or kick) Mr. Skerratt a number of times andyell at him to get him to wake up. It is a reasonable surmise that in a groggy, just-awakened state, the comparatively diminutive Mr.Skerratt would have visibly presented less of a threat to Mr. Yanish than he might have done had he been awake and alert when Mr.Yanish found him. [32] The fact that Mr. Skerratt was lying down on a bed and Mr. Yanish was standing over him at the side of that bed when theIncident occurred further tipped the balance of power, already tilted in Mr. Yanish’s direction, in Mr.

Yanish’s favour by conferring apositional advantage upon him. That, too, would objectively have rendered Mr. Skerratt a less obvious risk to Mr. Yanish, as would thefacts that Mr. Skerratt had no weapons in his possession and did not make any threatening gestures toward him before he (Mr. Yanish)began punching Mr. Skerratt (both of which facts Mr. Yanish conceded on cross-examination). [33] Beyond that, there is the fact that—as photograph 3 in Exhibit 1 clearly shows—Mr. Yanish need only have stepped back a paceor two to have been out of Mr.

Skerratt’s range and thus safeguard himself against any risk posed by Mr. Skerratt. A few more stepswould have taken him out of the second bedroom entirely. [34] Viewed in the context of the other facts established by the evidence, Mr. Yanish’s testimony about his reason for returning tothe Apartment and the fear that led him to strike Mr. Skerratt—all of which he tendered to the court in the hope of relieving himself ofcriminal liability for punching and injuring Mr. Skerratt badly—lacked an air of reality in all material respects: see R. v.

Cinous, 2002SCC 29 , [2002] 2 S.C.R. 3. [35] Moreover, to quote the language of O'Halloran J.A. in Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354(B.C.C.A.), the state of mind and motivations that Mr. Yanish sought to persuade the court governed his actions when he attended at theApartment on July 13, 2013, lack harmony with "… the preponderance of the probabilities which a practical and informed person wouldreadily recognize as reasonable in that place and in those conditions" (at p. 357).

I am aware that Faryna is a civil case but theapplicability, with appropriate caution, of its reasoning in criminal cases has often been acknowledged: see, for example, R. v. Wilder,[2003] B.C.J. No. 2884 (S.C.) at paras. 641-642, aff’d [2006] B.C.J. No. 1 (C.A.), per Romilly J. [36] It is true (as defence counsel argues) that even in his spontaneous and voluntary statements to Cst. Naderpour, Mr. Yanishdisplayed animus toward Ms. Leadbetter for cheating on him but made no express mention of animus toward the person with whom shehad been engaging in illicit sexual activity.

But the absence of such express mention in the evidence before the court is not all-determining. Common sense recoils from the proposition that Mr. Yanish would feel hostility toward Ms. Leadbetter about herprofessed infidelity and not feel hostility toward the person it appeared had been the other participant in the act of infidelity. [37] Most importantly, for the reasons I have given I wholly disbelieve Mr. Yanish’s testimony that he struck Mr. Skerratt with threeor four punches out of a fear—arising out of the way Mr. Skerratt sat up in bed—that Mr. Skerratt might harm him.

For the purposes ofthe analysis in R. v. W.D., (SCC), [1991] 1 S.C.R. 742, at 757, and as enlarged and modified by the B.C. Court ofAppeal in R. v. H.(C.W.) (1991), (BC CA), 68 C.C.C. (3d) 146 (C.A.), I will say that I reject altogether Mr. Yanish’sevidence in this connection. Neither do I find that it is capable of raising a reasonable doubt about him having acted in self-defence. Rather, the evidence points clearly to: (

a) Mr. Yanish having come to the Apartment in a state of anger and upset at the thought that Ms. Leadbetter had been involved in asexual encounter with another person; and (

b) Mr. Yanish having punched Mr. Skerratt several times in the head and neck area believing at the time, rightly or wrongly, that Mr.Skerratt was that other person. I so find. No other rational inference can be drawn from the facts established by the evidence led before me. Again, for the purposes of

the R. v. W.D. analysis, as I explain more fully below, the evidence I do accept persuades me beyond a reasonable doubt that self- defence does not apply. [ 38 ] These findings negate any reliance by Mr. Yanish on s. 34 . On the facts as found, he had no reasonable grounds to believe that a genuine threat of force was being made against him by the wholly compromised and virtually helpless Mr. Skerratt. The punches administered to Mr. Skerratt by Mr. Yanish were not defensive in nature or purpose; they were just desserts meted out for what Mr. Yanish believed (rightly or wrongly) was Mr.

Skerratt’s participation in Ms. Leadbetter’s professed act of infidelity. Those blows were not administered for the purpose of protecting Mr. Yanish from a reasonably perceived threat that Mr. Skerratt would use force against him. [ 39 ] If I am wrong in those findings and determinations, I would say nevertheless that Mr. Yanish’s actions in punching Mr. Skerratt three to four times and causing him considerable injury were unreasonable as being grossly disproportionate to any threat he may have faced, having regard to: (

a) The near-to-negligible threat posed by Mr. Skerratt sitting up quickly upon being awakened from a deep sleep; (

b) The manifest limitations upon Mr. Skerratt’s ability to use effective force imminently against Mr. Yanish, given i. his groggy mental state and disadvantaged position, sitting in a bed, relative to Mr. Yanish’s position standing over him at the bedside; and ii. Mr. Yanish’s ability to avoid any risk by backing easily out of Mr. Skerratt’s range; (

c) Mr. Skerratt’s role in the Incident being limited to having sat up quickly upon being startled out of a deep sleep; (

d) The absence of any use, or threat of use, of a weapon by Mr. Skerratt; (

e) Mr. Yanish’s superior physical size and comparative state of alertness; (

f) The absence of any prior history of threats or use of force by Mr. Skerratt against Mr. Yanish; (

g) The absence of any conflicted interactions or communications between Mr. Skerratt and Mr. Yanish at any time leading up to the Incident; and (

h) The force employed by Mr. Yanish in punching Mr. Skerratt three or four times in the face and head when compared to the near-to- negligible threat posed to him by Mr. Skerratt. DISPOSITION [ 40 ] As I explained at an early point in these Reasons, it is conceded by counsel for the defence that the actions committed by Mr. Yanish in the course of the Incident amount to an intentional, non-consensual application of force by him to Mr. Skerratt as contemplated by the definition for assault given in s. 265(1) (

a) of the Code . [ 41 ] Mr. Yanish has invoked self-defence as a means of purging that assaultive behaviour of its unlawful character. However, for the reasons I have outlined, Mr. Yanish’s actions—when considered within the context of the surrounding circumstances—do not constitute actions taken in self-defence as contemplated by s. 34 of the Code . [ 42 ] Accordingly, and for all of the foregoing reasons, I find Mr. Yanish guilty of the offence of assaulting Mr. Skerratt on July 13, 2013, contrary to s. 266 of the Criminal Code . ________________________________ Thomas S. Woods, P.C.J.